BHB, R. v

Factual and Procedural Background

This case concerns an appeal against conviction arising from allegations of sexual abuse made by a complainant, referred to as C, against the appellant, anonymised as BHB due to familial connections and statutory reporting restrictions. The offences relate to events occurring primarily in Hertfordshire when C was a child aged between 7 and 8 years old. BHB, the appellant, was approximately 15 years old at the time and is C's uncle through her mother H, who is the stepdaughter of S, BHB's mother.

The allegations surfaced in March 2021 when C disclosed the abuse to friends and family, which led to police involvement and interviews, including a pre-assessment interview and a later Achieving Best Evidence (ABE) interview. The prosecution charged BHB with seven counts of sexual offences, including rape and causing a child under 13 to engage in sexual activity, all said to have occurred in Hertfordshire.

At trial in June 2023 before Mr Recorder Mayall and a jury, three counts were withdrawn by the judge on the basis of no case to answer, due to inconsistencies relating to the timing and location of the alleged offences. The appellant was convicted by majority verdict on four remaining counts. Sentencing imposed suspended prison sentences with attached rehabilitation requirements and a Sexual Harm Prevention Order. The appellant was granted leave to appeal on seven grounds, with three other grounds refused and not renewed.

Legal Issues Presented

1. Whether the judge erred in refusing a joint application to discharge the jury following late disclosure and changes in the prosecution case.
2. Whether the judge was wrong to refuse a submission of no case to answer on counts 3 to 6.
3. Whether the exclusion of evidence from S and a related witness concerning the absence of opportunity for abuse in the London flat was erroneous.
4. Whether the judge erred in not directing the jury that speculation about counts 1 and 2 occurring at the London flat was improper.
5. Whether the judge’s failure to give such a direction after promising to do so caused detriment to the defence.
6. Whether there was a substantial risk that the jury speculated on counts 1 and 2 having occurred at the London address.
7. Whether disclosure failures relating to pre-assessment interview notes rendered the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The trial was unfair due to late disclosure of critical evidence and a belated prosecution change in case theory, justifying discharge of the jury to allow proper preparation.
• The judge should have found no case to answer on counts 3 to 6 due to insufficient evidence.
• The exclusion of evidence from S and another witness deprived the defence of relevant evidence regarding opportunity to offend in London.
• The judge failed to properly direct the jury to avoid speculation about withdrawn counts occurring in London, contrary to promises made, causing detriment.
• Disclosure failures prevented effective cross-examination and undermined the safety of the conviction.

Respondent's Arguments

• The judge properly exercised discretion in refusing to discharge the jury, emphasizing the importance of continuing trials fairly and efficiently.
• There was sufficient evidence for counts 3 to 6 to proceed, including credible testimony from C and supporting witnesses.
• The excluded evidence was irrelevant since no counts alleged offending in London remained before the jury.
• The jury directions adequately addressed the withdrawn counts, explaining their limited relevance to credibility and preventing speculation.
• Although disclosure was late, the defence was not prejudiced as the appellant had been questioned on the inconsistent account, and the jury was informed accordingly.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered each ground of appeal in turn, applying established legal principles and the facts of the case. On the refusal to discharge the jury, the court emphasized the importance of judicial discretion and the necessity standard, finding no evident necessity to discharge given the trial’s progression and the judge’s management of withdrawn counts. The court acknowledged the difficulties posed by the complainant’s inconsistent accounts on timing and location but accepted that such inconsistencies went to credibility rather than the sufficiency of evidence for the remaining counts.

Regarding exclusion of evidence from S and a related witness, the court held that the evidence was irrelevant to the counts before the jury, which did not include offences alleged in London, and that admitting such evidence would have distracted from the issues.

On jury directions, the court found that the judge provided clear, carefully drafted instructions explaining that withdrawn counts were not to be considered for conviction but could be used to assess credibility, and that the jury was repeatedly told to ignore the withdrawn counts except for this limited purpose. The court rejected the argument that the lack of an explicit instruction against speculation rendered the conviction unsafe.

Finally, on disclosure issues, the court acknowledged the failure to disclose pre-assessment interview notes prior to trial but found that the defence was not prejudiced. The appellant had been questioned about the inconsistent account, and the jury was informed of the discrepancy. The defence’s decision not to cross-examine the complainant on the inconsistency, coupled with the judge’s willingness to recall her, mitigated any disadvantage. The court applied established case law to conclude that the non-disclosure did not render the conviction unsafe.

Holding and Implications

The court DISMISSED THE APPEAL.

The convictions on the four remaining counts are upheld as safe and the trial process was found to be fair. The court’s decision confirms the proper exercise of judicial discretion in managing complex evidential issues and jury directions in multi-count sexual offence trials involving child complainants. No new legal precedent was established; the ruling reinforces existing principles on jury discharge, disclosure obligations, evidence admissibility, and jury directions in the context of inconsistent witness accounts and late disclosure.